On Syria and the Use of Force

The international legal blogosphere is alight with writing about the potential use of force by the U.S., and possibly France, against Syria, in response to the alleged use of chemical weapons by the Assad government, killing more than 1400 civilians.

I have been extremely pleased to have David Fidler’s and Liron Libman’s excellent piecces on this topic here on ACL. I’m particularly pleased because I think that both of them have, in expert fashion, zeroed in on the most persuasive identification of the law applicable to this issue. I think they have both correctly identified that, notwithstanding the UK government’s formal arguments regarding humanitarian intervention, this potential use of force would not be best understood as a humanitarian intervention, but rather as a direct response to Syria’s violation of international law prohibiting the use of chemical weapons. The purpose of this use of force, if rendered honestly – and not intentionally obscured by the typical resort to some species of self defense claim – would be to respond forcefully to this violation of the laws and norms governing behavior of states during armed conflict, and send a message of unacceptablility in order to deter similar future actions. And as Fidler and Libman urge, I think we in the international legal community need to deal with it on this basis, and not get off track into other veins of argumentation.

I read this morning a very good post on EJIL:Talk by Shane Darcy which made this same point, and I would recommend his piece to you as a very good review of the law of armed and belligerent reprisals. I think his post is a nice complement to what David and Liron have been writing here. Darcy does conclude that armed reprisals likely are unlawful under current international law, and I don’t take issue with his assessment. But I think that the kind of thought experiments somewhere at the intersection of the lex lata and the lex ferenda, of the type engaged in here by Fidler and Libman, are important.

As I said before, I have long been concerned that the absolutist interpretive approach to Article 2(4) of the UN Charter, which essentially says that, absent a compelling case for unilateral self-defense, international law never allows any international uses of force not approved by the Security Council, makes international law and international lawyers seem seriously and dangerously removed from the reality of international relations, and the need at times to use force in international relations for justified causes. And that, to the extent international law is seen to be simply impractical in the area of international uses of force, it is likely to be ignored, to the harm of international law’s credibility in this and potentially other areas as well.

I wonder if we can understand what the drafters of the UN Charter did in structuring the UN Charter system, in light of when they did it – i.e. after the experience of two horrific world wars. Its easy to see how, at that moment in 1945, there was an understandable eagerness to forbid anything that might even possibly lead to such a catastrophy of full-on great power warfare ever happening again. But I wonder if, with the passage of almost 70 years, the attending changes in international mores, and political and technological circumstances, we can with credibility say that that regime, which made emotive and intellectual sense to the drafters of the Charter, should still govern international relations today? Again, I have made these arguments more fully elsewhere.

I think that the arguments of theory and practicality, and particularly those of the slippery slope, made against the dilution of the bright line rule in Article 2(4), and the recognition, for example, of discrete rules allowing for humanitarian intervention, armed reprisals, counterproliferation-oriented preemptive self-defense, are well made and are persuasive. For example, if we were genuinely to pursue the legitimation of a rule permitting armed reprisals, could not that same argument be used by Israel’s neighbors to justify attacks on Israel in response to alleged violations of international humanitarian law committed by Israel in Gaza and the West Bank? Or for that matter by any number of states to justify attacks on US targets in response to alleged violations of international humanitarian law committed at Guantanamo Bay or by US drone strikes? You can imagine how this list could go on and on, potentialy eroding any clear prohibition on international uses of force.

Personally, I would say that I am dissatisfied with the absolutist approach to Article 2(4), and am open to and encouraging of the kind of thought experiments in which David and Liron have been engaged here. I think that the challenge of restructuring international law to allow for lawful uses of force in “just” situations – like humanitarian interventions, pre-emptive counterproliferation strikes, and reprisals against violations of international humanitarian law – and yet disallow uses of force in “unjust” situations (e.g. Iraq 2003, Iran 2013), is the holy grail of modern international legal scholarship and international lawmaking. I don’t think we’ve come close to cracking it yet.

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41 Comments on “On Syria and the Use of Force”

You miss the point in there is no universal definition or consensus on “just” and “unjust”.

International law can not be subject to such moral clauses as their interpretation hangs solely on the believe system of individual people. Many cultures will differ from what some politician sees as “just” cause and vice versa.

That is the very reason why the UN carta is this strict in setting limits on war.

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Aside from that please say again how Syria having not signed the chemical weapon convention be subject to it. The very existence of this convention proves that there is no universal law here but one that can be voluntarily signed on to or not signed on to. Syria did not sign on to it and can thereby be no subject to it.

Otherwise is Israel, not a signatory of the NPT, subject to NPT rules?

The point is not that Syria is not a States Party to the CWC. The norm of non-use is customary IL.
I do, however, agree that if not for the UNSC, who is supposed to judge on ‘just’ and ‘unjust’?
There simply is no universal understanding of just causes.

‘You miss the point in [that] there is no universal definition or consensus on “just” and “unjust”.’

Precisely. Thus there is simply no substitute for investigation and subsequent determination by a body, pre-agreed to by UN members, as to what events actually occurred which could subsequently justify military intervention by the SC or, lacking agreement there, by independent states. This is the closest we can come to a universal definition of justice in a particular situation. As flawed and incomplete as it may be, it is infinitely preferable to leaving such determinations to the independent states acting unilaterally.

I find the new trajectory of some pieces on this a site quite disturbing. Is there really no better purpose to put your collective decades’ worth of experience to than dreaming up exotic justifications for the justification of another assault on a middle eastern nation by the United States?

Just what is it about Americans that makes them believe that they have the ability to look into Obama’s eyes and decide that this time, he’s not lying. I mean, he was lying about closing Guantanamo, affordable healthcare, ending torture, squeezing out government lobyists, extracting America from the middle east, not launching new wars, nsa wiretaps etc… But this time, he’s just gotta be telling the truth.

You want to be a chemical weapons crusader? Try campaigning for the prosecution of the many government figures and corporate entities who during the late 1980’s
1. Equipped Saddam with chemical weapons know how and technology
2. Granted him ‘agricultrual’ monetray credit with which he could get his cheimcal weapons program started.
3. Shared intelligence with Saddam about how best to deploy his weapons.
4. Used western diplomatic heft to permanently stall any UN action on Saddam’s weapons.
5. Launched a massive media campaign to blame Saddam’s enemies for the chemical weapons attacks, thererby politically increasing his freedom of action.

What’s that? Not as sexy as calling for Uncle Sam to fly in and save the day? Guess I can see that. I mean, if we just bomb ‘em for miles and miles away, we won’t even have to worry about the loss of any precious American lives, right?

How many of you were busy writting up bold new interpretations of international law to justify reprisal strikes on US soil by the Iraqi Resisitance, in response to the deployment of chemical weapons in Fallujah?

Masoud,
You’ve been around this blog long enough to know that I am not someone around whose neck you can hang the moniker of a USG shill. You bring up the accomplice liability of the US in Hossein’s war crimes against Iran and the Kurds. I agree with you 100% about this and I think anyone involved in that shameful episode should be prosecuted to the fullest extent of the law. Its disgraceful that the US facilitated what Hossein did both to the Iranian army and Kurdish civilians.

While not on the same scale, can I not feel equally offended by Assad’s use of CW against 1400 civilians in Syria, and want to do something about it this time – perhaps especially because we didnt do anything about it back then?

As for whether Assad is behind the CW attacks, I have no more information than anyone else does. But a number of compelling factors in this case to me are the following. First, it does seem that there are some pretty damning intercepts showing Syrian army involvement. Second, while this may have been an elaborate hoax, my read of Obama over the past year has been a real reluctance to get involved in Syria. If the intelligence is good enough to bring him grudgingly to the conclusion that Assad or at least the Syrian army is responsible, that is persuasive contextual evidence to me. Third, and this is what exasperates me at the moment, all we’re talking about here is one or two days of cruise missile strikes. This is not even in the ballpark of being analogous to the invasion of Iraq in 2003. No one, and I mean no one, questions that the Syrian government has long possessed chemical weapons. They have now been used and there appears to be compelling evidence that the Syrian military is responsible. Sending a message that this is unacceptable through a limited use of force seems appropriate to me.

That being said, I almost wish now that Obama would drop the idea, because its now become such a huge talkshop issue. I think its been blown way out of proportion in terms of its implications and the whys and wherefores of it, and that now Congress is involved its just going to be an excruciatingly annoying political football.

If Obama was going to do it, he should have just done it a week ago. The domestic wrangling that’s now going to happen will have no bearing on the international legality of the strike. Its almost farcical now to be debating this in Congress as if it were a decision comparable to the Iraq 2003 decision. And all the old Iraq demons are being brought out in the process. To be clear, as I’ve said before, no one opposed the 2003 Iraq intervention more vehemently and consistently than me. But the current Syria issue shouldn’t even be mentioned in the same breath with it. And now that it is being so mentioned, I do almost wish it would be abandoned.

So, assuming we know that both allegations (use of CW and direct responsibility of the Syrian State) are true, keeping in mind that they are solely advanced by the adversary of the Sysrian State, the legal opinion here strangely looks like: you can only right the wrong that has been done to the existing International Law by breaking another existing International Law?

In a similar analogy: at the national sovereign level not all the aspect of the laws are just or equitable or completely fit the rapidly evolving society. And, the best ways for remedying this kind of situation has always been to either go through the justice system process or to change the law via electoral system. Breaking the inefficient laws with the goal of (en)forcing the normal to evolve to a better state is for me, as a citizen, an invitation to lawlessness and anarchy.

I think one commentator briefly mentioned this here, it can be expected from a military strategist or a historian to consider the international relations between powers being fundamentally based on “might makes right”, thus rendering International Law ultimately irrelevent. But what about the law experts, isn’t it normal to anticipate that they will push for the ideal of having the laws to be the at the center of the international realtions instead of advocating the “real world” rule of the mightiest as the driver of the IL ?

First, it does seem that there are some pretty damning intercepts showing Syrian army involvement.

Second, while this may have been an elaborate hoax, my read of Obama over the past year has been a real reluctance to get involved in Syria.

Third, and this is what exasperates me at the moment, all we’re talking about here is one or two days of cruise missile strikes.

1. The assertions of American intelligence, huh? What could possibly go wrong?

2. This blog is a devoted to, and does a damn good job of, exploring issues related to arms control from an international legal perspective. I don’t think there’s ever been anything more than the broadest sense of a shared political outlook. All the better, in my opinion: the larger the tent, the more tighter the analysis. If I were going to share my views on Obama over here, you’d likely wind up feeling that you had no option but to censor what I wrote. And with good reason. But why are we discussing these matters anyway? Can sound legal analysis depend on the anguish or reluctance we see, or beleive we see, in this or that politician’s eyes?

3. What we are discussing here is encouraging the US’ self perception at the sole owner and proprieter of the planet. We’re also discussing the willing gullibility of the American public. We’re also discussing what many hope to be the first of many interventions into the affairs of the Syrian people which would empower the Arab world’s equivalent of the KKK(except they’re much more extreme and bloody minded), over a tolerant, pluralistic, and sovereign, government that enjoys broad based popular support. We’re also discussing is the seemingly bottomless gullibility of American’s of all stripes, and the seemingly irresistible pull they feel to, now and again, cheerlead the launch of yet another good ol’ American war.

While not on the same scale, can I not feel equally offended by Assad’s use of CW against 1400 civilians in Syria, and want to do something about it this time – perhaps especially because we didnt do anything about it back then?

The ‘we’ you’re talking about here is the same ‘we’ that was the main culprit in the gassing of Iranians and Kurds. That is something we know without a shadow of a doubt. What also know, but have to wait for history to catch up with us before we express it with the same level of certainty is that ‘we’ were also responsible for the folks that decided to launch this operation.

You know what I feel awful about? The Kidnappings of Amanda Berry, Gina DeJesus, and Michelle Knight.

You know what I’m not going to do about it? Suggest that Ariel Castro should be put in charge of the sexual victims unit at the Cleaveland PD, so that he finally has a chance to make amends for his previous moral lapses.

“If Obama was going to do it, he should have just done it a week ago.”

I presume you mean, without congressional authorization. Many, perhaps most legal scholars, including President Obama in 2008, would find that to be a violation of American constitutional law.

“[T]here appears to be compelling evidence that the Syrian military is responsible.”

Isn’t this assertion of yours highly contentious, to say the least, and becoming more so, in view of the continuing emergence of other evidence? That you should say this at this point, seems to reveal more about your outcome-based desires than anything else.

“Sending a message that this is unacceptable through a limited use of force seems appropriate to me.”

And on the basis of something seeming to be appropriate to you, we should try to find new ways to legally justify this action? Under the circumstances, I don’t think that is enough.

It’s not a question of what is right or wrong, good or evil. It may be perfectly just in the Platonic sphere for an omnipotent sovereign to punish erring nations. But because governments are not disinterested parties, and because their judgment may be wrong even without their interest bending it in a direction favorable to that interest, we have extra procedural precautions because the likelihood of error is great, and because the outcome is always death.

The same rationale at work in international law is at work in democratic governments which distribute power in separate branches, and which requires that people who really obviously seem to be really bad criminals nevertheless receive due process. It may be that some criminals will not be punished because of adherence to process. But that is better than punishing an innocent person.

A fortiori this rationale should apply to states. There is a process in place agreed to by nations at the UN. They should not be permitted to avoid this process because it is suddenly inconvenient to them by trying to ‘evolve’ international law in transparently self-serving ways. The alleged evil to be remedied–the limited use of chemical weapons–is outweighed by the evil of damage to the fabric and respectability of international law which an ad hoc exception to procedure would produce.

The consequence of legally justifying unilateral state action will be to give freer reign to the strong nations to impose their will. Preventing this kind of thing is one of the main reasons we have international law, and one of the main reasons states decide to be part of the UN at all.

If states want to legally justify this kind of action, they should agree to do so at the UN. Do you think that, after a moment of quiet reflection, when no crisis is burning, that they ever would do so?

To be honest, I simply don’t agree with Dan’s argument that international law has to bend on this issue lest it become irrelevant.

The key passage is this one:
“And that, to the extent international law is seen to be simply impractical in the area of international uses of force, it is likely to be ignored, to the harm of international law’s credibility in this and potentially other areas as well”

Hmmm. Sorry, but I much prefer this view from Anthony D’Amato:
“The best that international law can do is to articulate to states that are involved in a dispute a choice between the legal route and the expedient route. To choose legality is to bring a tiny bit more order into the world; to choose power politics will bring a measure of disorder into the world. And that’s most of what international law is.”

To do as Dan argues is to abandon the aim of “bringing a tiny bit more order into the world” in favour of “not being ignored”.

I simply don’t agree with that: I think the role of the international lawyer is to point out the *cost* of international law being ignored in the way that it has increasingly been ignored.

And that *cost* is this : the USA is taking us – inch by inch, oh-so-slowly – back to the world that existed pre-1939 when Might Made Right and the mighty thought nothing of smiting the weak.

The USA is doing this because nobody is willing make them pay for what they are doing, but one day the USA will take a swing at someone who is big enough to take a Mighty Big Swing back at ‘em. And when that happens we’ll all know about it, and not a one of us will be able to say that we never saw that comin’.

Pros and cons… Those who are “for” or “against” the probable-though-on-the-way use of force in and against Syria… Those interpreting Article 2(4) strictly or as wide as possible… Those who are legitimizing the “policy choices” giving effect to Reelpolitik or stressing law’s normativity based on hard rules… They seem to be conflicting, but, in my opinion, they share a thing, they “ignore” the masses, the people, the mode of thinking which allows violence and builds thereon, like a dangerous supplement.

To my knowledge, at the time Obama delivered his speech, there were no reaction from any UN staff. The mass communication only dealt with the news regarding UNHCHR action by that time, that moment, nothing else. This is striking.

To me, the illusory power of imposition of words w/o context, i.e. “just”, “unjust”, “use of chemical weapons on masses”, “humanity”, “justice” etc. in legal vocabulary not only de-powers or counters the UN Charter or our understanding of international legal order vis-a-vis killing of the masses in unclear series of events: E.g. at last but not least, we do not know who did the chemical attack for the time being, therefore, who to blame and punish?!

I read the recent developments in two aspects. The first, modest one, assures that given the lack of any sense for masses, the “population” in the juridical vocabulary hinders its utmost project, it’s critical bite for removing injustice from the social sphere. And, the second, disturbing one, assumes that the participants in/of the legal discourse imply in conflict/dispute situations the use of force in Mid-East as elsewhere in the Third World in a way to mask the hegemonic enterprise. By this conflicting perceptions in mind, I sense that there is no place in the juridical vocabulary for the people living the utmost catastrophy and shattering in Syria today. W/o any sense of the “subject”, and it’s place in the “cosmos”, international lawyers, whatever is/has been their point of reference (e.g. arms control) seek for the hard realities not capable of criticizing from within. In this perspectives, stressing on “modernity” (in international law or anywhere else) in such an “otium” situation, results, inter alia, the ambiguity of the “sense” by which we would find a reference to change what “is”. In sum, we cannot infer what “should be” by looking just at “what is”.

So my suggestion is that we should oppose the unilateralist/hegemonistic/excluding… practice of international law which would enable to deny further brute violence in the name and under the guise of “use of force vs. chemical weapons in any conflict”, especially where there is no consensus (in stricto sensu) in, no resolution passed by the United Nations Security Council.

As the person who threw out a “thought experiment” on a potentially new justification to the prohibition on the use of force related to responding to the use of chemical weapons in Syria, I wanted to chime in here.

I posted the “thought experiment,” to which many people have taken such umbrage, because, as an international lawyer, I was trying to assess what I was seeing taking place in this crisis. What I saw emerging was an attempt to justify military action against Syria under grounds that could not, after analysis, fit into any exception to the use of force currently debated in international law–Security Council authorization, self-defense, or humanitarian intervention/R2P. The justification related to responding to large-scale use of chemical weapons did, in fact, become a critical feature of both the UK, US, and French legal positions. I believed that we needed to understand what this justification might involve, and what legal and other implications it might have.

This exercise was not one of making up “exotic defenses” to permit the US to attack another country; it was an exercise in trying to figure out, within international law, what we all saw unfolding before us. And the effort came with express caveats: (1) I, and others participating in this debate, did not know what actually happened and acknowledged that proper attribution of the chemical weapons attacks still remained critical to international legal analysis, and (2) the justification for using force related to responding to chemical weapons attacks was, legally, very controversial and, thus, a matter on which people could very reasonably and strongly disagree.

For me, the back-and-forth on the blog on this issue underscored why international law on the use of force always exists either in, or on the cusp of, controversy, and, thus, never settles down. Just as international lawyers debated whether NATO could intervene legally in Kosovo to stop ethnic cleansing without Security Council authorization, events have forced us to consider, and argue about, whether large-scale use of chemical weapons by a government against civilians could constitute a legitimate and legal reason for using force in the absence of a Security Council resolution. Debating these questions, as lawyers, is part of the tradition of international law, not a betrayal of this tradition.

And this tradition is part of a larger challenge having to do with understanding international law’s place in international relations. As they say where I grew up, I’ve been to this rodeo too many times to be ignorant of the dangers at the intersection of international law and war, and how these dangers threaten efforts to work between power and principle. As Kenneth Anderson nicely put it in concluding his analysis on this issue (see: http://www.asil.org/insights130830.cfm):

“The world is thus at a fraught place, not just about particular actions, but about the conception of international law that undergirds international order. A legal norm hangs in the balance—one with both formal and informal dimensions, a norm of warfare of enormous humanitarian consequence if systematically breached and also of unexpected endurance. And yet, at the same time, the authority and role of the Security Council are equally at issue here. It is not clear that any of the legal arguments – on any side – are adequate to address the real world stakes.”

For those who already know the truth or who have already concluded the US violates international law every chance it gets, then this blog’s efforts to participate in this tradition cannot be very interesting or helpful.

In the previous allegation of CW use it turned out that home made rockets were used and that the CW were also home made. Likely a Saudi inspired rebel ploy.

So, yes, the UN investigators could determine if the CW were “official” industrial/military type or home made. They could verify if the CW are consistent with Syrian stockpiles or maybe supplied by Saudis and Bahrianis. US Intel on the ground is just not that good right now. There may be active disinformation from Saudis.

Ok. But if they do determine that they are “official” military grade, that still wouldn’t answer the question of who used them, right? I’m just trying to make the point that waiting for the UN labwork on this issue won’t produce a definitive answer to the specific question of who used the CW.

There are TWO possible outcomes from the UN investigation:
1) This was top-notch military-grade CWs delivered by sophisticated military munitions
2) This was home-brew chemical weapons, delivered by crude weaponry.

The former still doesn’t tell us who did it, since I think it’s logical to assume that some of the Syrian Army’s stockpile of CWs has been overrun by rebel forces.

But the LATTER would rule out the Syrian Army as the culprit.

Yousaf (correctly, in my opinion) is pointing out that it is worth waiting for that UN report even if only to rule out (2).

Would it, though? I do understand what Yousaf is saying and I think its valuable and that we’re having a good conversation. But isnt it true that whatever subterfuge and mislead you think the rebels capable of, the army is capable of too? So isnt it true in the end that whatever we find out about what CW were used, we wont know definitively from that fact the identity of the users? It seems to me that that’s why the other intel sources (intercepts, etc.) are as or more important than finding out what CW were used.

And let me say that you guys know, I hope, that in general I am all for being sure about things, taking time to get facts straight, and not going into anything unless its really justifiable. On the other hand, there are moments in international relations when time is of the essence and action is called for, and when taking an indefinite amount of time to make sure all the t’s are certainly crossed and i’s are certainly dotted just isn’t prudent. It seems to me that this is the situation when terrible things are happening to civilians, and it is necessary to respond in a timely manner to stop those things from happening.

Thats why none of what I’ve been arguing about this Syria situation would be relevant to the Iraq 2003 situation, or to considerations about attacks against Iran.

“But isnt it true that whatever subterfuge and mislead you think the rebels capable of, the army is capable of too?”

No, it isn’t true, certainly not w.r.t. the narrative that Kerry and Obama have been spinning so far.

Which has been that the CW attack took place BECAUSE the Syrian government has no time for subterfuge, nor cunning, nor foresight.

Assad didn’t CARE that there were UN inspectors in-country.
Assad didn’t CARE that the President of the United States had drawn a red-line.
Assad didn’t CARE that a CW attack violated int’l norms and laws of warfare.

Assad simply saw an opportunity to kill some people with sarin gas, and he took it because… because…. well, because he simply didn’t care.

Well, so sorry, if it turns out that the only way to pin the blame on Assad is to assume that he made up the sarin gas in his garden shed, and he then poured it into some empty beer bottles he had lying around his living room, then that narrative gets shot to pieces.

After all, if he has to go to that trouble then what, exactly, is the point of him unleashing this stuff? What advantage does he gain by deploying as-cunning-as home-brew sarin?

General: I know! Let’s use our sarin gas on these vermin!
Assad: No. Obama would rain tomahawks on our head if we did.
General: But, but, but, we could disguise our attack by using home-brew sarin instead!
Assad: Well, gosh, if we have to go to that much trouble then why bother doing this?
General: I…. ummmm…. errr……
Assad: Why not just stick with our heavy artillery?
General: Errrr…. ummm….. I…..
Assad: You really haven’t thought this through, have you?

David, I pretty much agreed with everything you said…. right up until the very last sentence.

In particular, this bit: “For those who already know the truth or who have already concluded the US violates international law every chance it gets,”

To be honest, I find that offensive.

You have been arguing whether (or not, as the case may be) the use of force by the USA against Syria can be made to fit within a legal framework, and good on you in doing so.

But, gosh, it is perfectly possible for someone to come to the conclusion that, no, it doesn’t fit.

Now it is perfectly possible for someone to come to *that* conclusion based entirely upon the facts of *this* case, or upon a reading of int’l law as it applies to *this* circumstance.

Yet you appear to be insisting that people who conclude that *this* action would be illegal do so for no other reason than that they believe that anything the USA does is – by the very fact that it is the USA is doing it – an illegal act.

Again, I find that offensive.

It is perfectly possible for the USA to be in the wrong.
It is perfectly possible for the USA to be contemplating a war crime.
and
It is perfectly possible to come to *that* conclusion in *this* case without blaming the USA for all that is wrong with the world.

I don’t believe that the USA is addicted to violating int’l law at every opportunity.
I don’t believe that the USA has any legal justification – none whatsoever – for attacking Syria.

Oh come on, Johnboy. You have to admit that there are many people who do fit that description exactly – that are antithetical to the US and operate on an assumption that whatever the US does it is wrong and is operating with evil intent. Just like there are people in the US who think those same things about Iran, for example. I’m not saying that you are one of those people, and neither was David, but you surely have to admit that there are alot of those people out there. There are also many of us in neither one of those camps – who really do try to evaluate each issue as objectively as possible on its individual merits. I have no doubt that you are one of those people, as I hope to say I am. But I dont think its offensive for David to rightly assume that there are many people who do fit that mold.

Dan: “You have to admit that there are many people who do fit that description exactly”

Indeed there are, but what I find objectionable about that sentence is that it divides the world into two camps:
a) The group that are willing to entertain the idea that int’l law should bend in order to accommodate Obama’s desire to bash Assad on the head.
b) The group that takes a contrary view because of their hatred of the USA.

I do not dispute that there are people in both those camps.

I also do not dispute that you accept that those two groups are not all-encompassing.

But what I do find objectionable is that David Fidler has written a concluding paragraph that – as written – attempts to disparage all contrary views by arguing that those two groups are, indeed, all-encompassing.

Because that last paragraph as written amounts to this equation: if not (a) then (b).

1. The UN investigation has been expressly limited to finding chemical evidence and has been prohibited from determining fault. So the UN findings, unless they exceed their charter, can not interfere with the US intelligence assessment that even if there is evidence of chemical weapon use only the government could be culpable, because the rebels don’t have the capability (the US has wrongly assessed).

2. Sorry Dan — I still can’t get my mind around how lawyers, and especially lawyers, can simply forsake the law and instead engage in “thought experiments” to avoid/evade the law I guess burglars are okay with doing this too, to justify their trade?

The fact that UN investigators may not be able to attribute the chemical weapons use in Syria to any particular side, is itself an argument against the recognition of the proposed exception to the prohibition of the use of force. It is instead a very good argument for a “bright line” rule of requiring UNSC authorization.

And lets ask ourselves this — why assume that UNSC authorization for the use of force in a legitimate case of CW use against civilians would not be forthcoming, so that we have to instead rely on manufacturing new exceptions? It seems remarkably naive to assume that in such a case, those UNSC members blocking intervention must be doing so based on ill motives and political agendas, whilst the members in favor of intervention necessarily are acting out of the goodness of their heart..especially in cases where it isn’t clear who used the chemical weapons.

Hi everyone,
I think that we have been having a good conversation here generally, though I’ve now had to exclude one comment that I thought crossed a line of respect and collegiality. Let’s all take a breath.

I want everyone to be able to have their say on matters of substance. I think, though, that we may be approaching the point of diminishing marginal utility with comments on this post. It may be that we’ve all just about had our say, and some of us will likely remain in disagreement about some things. That’s fine of course and to be expected. I’m keeping comments open, I just wanted to signal that it may be time to consider that we’ve just about said our respective peace, and move on.

That darn Ban Ki-moon, he’s a stickler for the law (who knew he could be anything but a US lap-dog).
Ban: “The use of force is lawful only when in exercise of self-defense in accordance with Article 51 of the United Nations Charter and/or when the Security Council approves such action.”

But who listens to Ban. His credibility was shot long ago. So R.I.P. UN Charter, the “law of the land.” Let the “surgical bombing” begin. Let’s bomb Syria because (allegedly) Syria bombed Syria, if that makes sense.

Because there ARE NO military solutions to these sorts of events which will not produce additional and unacceptable results (including civilian casualties), especially if these military solutions entail unilateral action by states outside of the UN.

The one possible exception might be a :”surgical assassination” of the political leaders involved. But as we all know, no political leader in the world wants to open THAT can of worms – because they are all vulnerable.

How likely is it, for example, that a political leader decides to use nuclear weapons on his own people? Chemical weapons are a joke in comparison. Such a situation is so unlikely as to be pointlessly hypothetical to justify such a legal argument. Anything less is simply inadequate as a justification for the use of military force.

Consider a government that literally begins a genocide against a significant portion of its own people, let us say around or in excess of one million. How many times has that happened and the US has done absolutely nothing about it? The US did not intervene with Pol Pot for its own reasons.

Tactically, how does one use military force to intervene in the conduct of ground forces in another country WITHOUT having to literally invade that country? Air power cannot stop ground operations, any military expert will tell you that. And how does invading a country stop ground operations short of destroying the military capability of that country, completely occupying the country, deposing the state conducting the crimes, and then “nation building”?

And why would such a response be necessary WITHOUT UN approval? While the US has been the one most consistently using its UNSC veto power to protect Israel from the effects of literally hundreds of UN Resolutions, is it likely that any of the UNSC seated members would veto a UNSC Resolution in the stated scenario? Syria does not qualify because the situation there is not genocide, but armed civil war. It does not even really come up to the level of a “threat to the peace of the region”, despite its effects on Lebanon, for example.

Unless someone can come up with a REALISTIC scenario in which unilateral military action by a state is the ONLY possible resolution to the scenario, then these “thought experiments” must be dismissed as a solution looking for a problem.

Also, the notion that these “thought experiments” are merely a means of analyzing the international law implications of what is actually being done is completely backwards. You decide what SHOULD be done and make the law about that – not retroactively thinking up ways to justify whatever action would otherwise be illegal.

The lawyers for Obama and Cameron and Hollande are pushing the case for intervention. Their “legal opinion” is about as useful as relying on one side or the other in any court case.

“Starting a war” has been called the “ultimate war crime.” Chemical weapons are an emotional issue that falls far below that standard. There can be no way to justify “exceptions” to the prohibition against starting a war based on such an issue.

Breaking news: Vladimir Putin has told AP that he is not going to rule out supporting a UNSC resolution authorizing the use of force if convincing evidence for Assad’s culpability is presented to the Council.

Putin: “If there are data that the chemical weapons have been used, and used specifically by the regular army, this evidence should be submitted to the U.N. Security Council.”

Putin: “And it ought to be convincing. It shouldn’t be based on some rumors and information obtained by special services through some kind of eavesdropping, some conversations and things like that.”

To my mind that’s just plain common-sense i.e. if the USA has p.r.o.o.f. then the UN Security Council is the proper venue to lay those cards on the table.

Putin is saying that if the USA can do that – and do it convincingly – then he will put his veto back in his pocket.

There is a debate here about due process and the role of the UNSC in responding to unequivocal (and that’s up for debate) breach of international law following due process. Underpinning this is deep suspicion about Washington’s motives as both a violent geo-strategic actor in the Middle East AND chief author of the post-war ‘constitutional order’ constructed over the past 6 decades that includes formal and informal rules and norms to limit the forms and extent of political violence. US exceptionalism dictates a punitive response to flagrant breaches of norms it holds dear, and norms associated with containing the nexus of ‘rogue’ states-WMD-terrorism that has defined its post-Cold War & post-9/11 national security narrative are especially dear.

Charles Krauthammer once called the US a ‘benign imperium’. That view simply does not hold throughout much of the Middle East. It is seen instead as a destabilising and often malevolent actor rather than benevolent enforcer of common rules for the common good, and therein lies the challenge.

Perhaps instead it is useful to think about nuclear-related positive security assurances: commitments by the NWS to come to the aid of any NPT-NNWS attacked with nuclear weapons. What are the legal implications of a) extending this to CW; and b) extending this to civilians?

What I find has been thrown out with the bath water is the standard of proof.

Somehow, because the proposed hypothetical remedy is ‘violent reprisal,’ whereby according to military rules it is perfectly OK to give the speeding ticket to the passenger, then who gets punished according to what standard of evidence, reasonable doubt, etc. have fallen by the wayside.

This would not be the case, if the remedy was indictment of individuals by the international court of justice, and their subsequent prosecution. Even if wrongly acquitted, the word would have the satisfaction of due process being followed.

This remedy exists, and all the talk of reprisals pretends there are only 2 choices: acquiesce to violations of international norms, or bombing a country. These are typical false binary choices proffered for marketing ploys, not discussions of law.

[…] is enough to generate the desire to intervene in Syria. The recent use of chemical weapons creates a legal justification for intervention. The question is whether there is any good to be accomplished through an […]